from the because-reasons dept

As was widely expected after Tuesday's close vote on cloture, the Senate officially voted to renew (in a somewhat expanded way) Section 702 of the FISA Amendments Act by a vote of 65 to 34. That also means a few of those who voted against cloture switched over and voted for the program, including Senators Ted Cruz and Chuck Schumer. President Trump will almost certainly sign the bill shortly, despite confusing basically everyone last week by tweeting out complaints about the program, despite his White House vehemently supporting it.

Trump's confusion isn't all that surprising. What is surprising is just how many people who have been complaining and warning about Trump made this possible. In the House, vocal Trump critics including Nancy Pelosi, Adam Schiff and Eric Swalwell were among those who voted for this bill which, again, gives the FBI the power to spy on Americans without warrants via the collection of content (not metadata) swept up by the NSA. While defenders of the program keep insisting the program cannot be used to "target" Americans, they leave out that a ridiculous amount of American content is swept up into this collection, which can then be sifted through without a warrant, including a huge amount of communications of Americans.

Over on the Senate side, things were even more ridiculous. Senator Jeff Flake voted for cloture, helping to end (the already non-existing) debate on such surveillance, and blocking any amendments. And then, the very next morning, went on the Senate floor to slam the President, compare him to Stalin, and warn that our democracy may not survive. Again, this was mere hours after Senator Flake voted to give more surveillance powers to the President he was about to compare to Stalin.

Or how about Dianne Feinstein? It may be no surprise that Feinstein voted to continue and expand surveillance -- she has a long history of doing exactly that. But just about an hour before voting for cloture, Feinstein herself introduced an amendment that would have required a warrant to search the corpus of data collected under 702. And then she voted to block that amendment from even being voted on. Let me repeat that, because it's just that insane: Feinstein introduced an amendment to the 702 renewal, that would have required a warrant to sniff through the data... and then voted against allowing that amendment to be heard and voted on. Within an hour or so. And, since cloture needed 60 votes and just squeezed through with those 60 votes... Feinstein could have changed the debate herself. But chose not to.

Or how about Senator Claire McCaskill. She was the final vote for cloture and took over an hour after the vote was called to actually reach the floor. She was the actual deciding vote, as, if she voted against it, the cloture vote would have had only 59 yaes, and the debate would have continued, and amendments proposed. Trump has been loudly denouncing McCaskill for months as she's facing a tough reelection campaign. And her response was to deny any further debate or amendments and to vote to give Trump more surveillance powers.

These are not the only ones. Many vocal critics of the President just handed him much greater power to warrantlessly spy on Americans -- something the President (in a confused way) complained about concerning what he believed (incorrectly) was illegal spying on his own campaign.

Zack Whittaker at ZDnet has also compiled a list of elected officials who had put out earlier statements promising to reform surveillance... only to then vote for this program. It includes both Swalwell and Feinstein mentioned above, but many others as well.

Over at Lawfare, a site that has long defended basically every aspect of the surveillance state, reliable surveillance defenders Jack Goldsmith and Susan Hennessey tried to defend the paradox of not trusting Trump, but giving him the ability to warrantlessly spy on Americans. The crux of it is basically... "we don't trust Trump, but there are good people in the intelligence and law enforcement communities and they'd never abuse these powers."

More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance.

Not surprisingly, Marcy Wheeler rips these claims to shreds in a response on her own blog, noting that beyond factual errors in the piece, it more or less ignores the FBI's role in all of this. Even if we grant the (incorrect) claim that the NSA doesn't abuse this data, that's not at all clear on the FBI side -- especially when the FBI refuses to provide any details at all:

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

Furthermore, Wheeler notes that Hennessey and Goldsmith completely ignore how this gives Attorney General Jeff Sessions incredible unreviewable power to make use of this warrantless data for criminal prosecutions, hiding where he got the information from.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

And, now, it appears that (unless Fox News somehow intervenes again) the President will sign this bill. EFF has put out an open letter about how awful this is, and how it intends to fight this in court. But, this was a major missed opportunity, and what's most incredible and disappointing is how many people who complain about Trump's authoritarian tendencies were central to making it possible.

from the not-unexpected,-but-dumb dept

As was unfortunately expected, after a very short (and fairly stupid) debate that was full of misleading statements that focused more on "but... but... terrorism!" than anything substantive, the Senate has voted for cloture on the same bill the House approved last week that extends and expands the NSA's 702 surveillance program, opening it up to widespread abuse and refusing to do simple things like adding in a warrant requirement when used to spy on Americans. The vote was actually surprisingly close -- going right down to the wire. They needed 60 votes to get this bill over the top and they almost didn't get them. The final vote was 60 to 39 with the final vote (well over an hour after the vote starting) coming from Senator Claire McCaskill in favor of warrantless spying on Americans.

This is not all that surprising, even if it's disappointing. It follows the pattern that we've seen with surveillance programs over the past decade. Whenever they are up for renewal, Congress refuses to debate or discuss serious reforms until there's like a week left... and then they have a simplistic and rushed debate that basically consists of the hawks freaking out about how we're all going to die if the NSA can't keep spying on people, and civil liberty defenders pointing to the 4th Amendment, only to have the surveillance state supporters push back that the NSA protects us and is full of good people and how dare you question their good nature by insisting on petty little things like "warrants" as required by the Constitution.

The cloture vote is not technically the final vote. It just shuts down debate and blocks the ability to raise any amendments. There will be a final vote soon, but the cloture vote is, effectively, the important vote here, and having voted for cloture the bill will pass -- and despite President Trump's confusion last week, he will sign the bill, and the NSA will get to turn back on its "about" surveillance capabilities it had been forced into shutting down last year, and the FBI will continue to get full, warrantless access to the "backdoor" or "incidental" collections of the communications of many, many Americans without a warrant and without anything approaching probable cause.

While this was expected to turn out this way, it's still bad. It's our Senate (and the House and the White House) purposely spitting on the 4th Amendment of the Constitution to appease the NSA and the FBI. And, as with last week, it's especially incredible to see a number of Senators who have spoken out against Donald Trump -- including Senators Jeff Flake and Dianne Feinstein -- then turn around and vote for this. Last week, Flake compared Trump to Stalin. And just days later he votes to give that same Trump vast surveillance powers over Americans. Incredible. Meanwhile, Trump has been attacking Claire McCaskill left and right as she's up for re-election... and she repays that by giving him more surviellance power and selling out the American public. Missouri voters should remember that.

from the say-bye-to-the-4th-amendment dept

Following yesterday's bizarre vote in the House, in which many members who opposed President Donald Trump and warn about his abuses of office voted to give him much greater surveillance capabilities, the issue quickly moved to the Senate. Senate Majority Leader Mitch McConnell made a procedural move to ensure no amendments are added, and the bill the Senate will vote on will be basically the awful bill in the House.

On top of that he put out a misleading statement, playing up the usual fear mongering about Section 702 and even name-checking 9/11.

“Republicans and Democrats agree that we must not deprive the men and women who protect our country of this important tool. Five years ago, a reauthorization of Section 702 passed the Senate with overwhelming bipartisan support. Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas. I look forward to renewing the bipartisan consensus on this issue now that the time has come to approve a new extension.”

“With each day that passes since this nation was attacked on September 11th, 2001 it seems that the concern over terrorism has waned. That is in part due to the success of our defense and intelligence community in preventing another attack. And they rely upon section 702 to accomplish that mission. But as we know, Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas.”

Of course, this ignores that Section 702 didn't even show up until almost a decade after 9/11 -- so really wasn't responsible for most of the intelligence work that McConnell is giving it credit for. And, on top of that, it ignores the widespread abuse of Section 702 programs that we now know about. It also ignores that in some ways this new bill expands the power to conduct surveillance on Americans without a warrant and to use that surveillance for law enforcement, rather than intelligence purposes.

An intellectually honest debate about this would address these issues. But McConnell does not appear interested in an intellectually honest debate, preferring to scream "9/11!" and demand Senators vote to approve the plan. There is a group of four Senators pushing back against this: Senators Rand Paul, Ron Wyden, Mike Lee and Pat Leahy have sent a powerful letter to their colleagues, detailing the many problems with the bill.

This bill allows an end-run on the Constitution by permitting information collected without a warrant to be used against Americans in domestic criminal investigations. It endorses the possibility that the government will resume “about” collections on Americans, a practice that the government was actually forced to abandon last year due to significant non-compliance with privacy protections ordered by the FISA Court. And it does nothing to protect innocent Americans from expanding warrantless surveillance.

Continuing the “backdoor” loophole: The bill does nothing for the thousands of Americans whose private communications are searched without a warrant every year, including those who are not even the subject of an investigation. Nor would it prevent unlimited searches for Americans’ information, even for non-national security purposes. The so-called “warrant requirement” reform in the bill applies only to criminal suspects, and then only to the government’s access to their information at the final stage of an investigation, a situation that, according to the most recent annual data from the Director of National Intelligence, has occurred once. This means that the bill actually treats those suspected of a crime better than innocent Americans.

Restarting “About” collection: The bill, for the first time, would statutorily recognize the possibility of the government restarting “about” collection, essentially by default, which would necessarily include warrantless collection of communications to and from Americans for whom there is no suspicion at all. The government was forced to abandon this problematic form of collection last year due to extensive compliance problems, and should not be allowed to resume it without specific Congressional approval.

Unreviewable end use: The bill grants new, unchecked powers to the Attorney General to allow data collected without a warrant to be used in domestic criminal prosecutions of Americans. The Attorney General merely has to determine that a criminal proceeding “affects, involves, or is related to the national security of the United States” or involves a “transnational crime.” Alarmingly, the bill explicitly prohibits any challenge to the Attorney General’s decision.

To be clear, FISA’s purpose is to collect foreign intelligence, but without additional meaningful constraints, Congress is allowing the government to use information collected without a warrant against Americans in domestic court proceedings. We have introduced two separate bills which preserve the government’s ability to pursue terrorists abroad and protect the country from foreign threats while also making the necessary reforms to protect the Fourth Amendment rights of Americans here at home.

The FISA Amendments Reauthorization Act, however, further expands the risks of unconstitutional spying on innocent Americans, and we encourage you to join us in opposition to this bill. We believe that a clean, short-term extension would be markedly preferable to this legislation. Section 702 was last extended for the length of the Continuing Resolution; if Leadership does not allow any amendments to the FISA Amendments Reauthorization Act and it does not pass this coming week, then Section 702 authorities can be extended again on the next Continuing Resolution to allow the Senate to fully debate how to appropriately reform this powerful surveillance tool.

It would be nice if other Senators actually paid attention and listened to these four... but the fact that it is just these four (and they tend to be the most reliable four Senators talking about protecting the 4th Amendment) suggests that McConnell knows that he has enough votes to pass the bill and allow the NSA and domestic law enforcement to increase their warrantless surveillance of Americans. This also means that it might be a good time to call your own two Senators and make sure they're voting against this. Fight for the Future is crowdfunding to buy billboards advertising against some Senators who vote for the bill, but the more these Senators hear from constituents saying that this bill obliterates our 4th Amendment rights, the better.

from the surveillance-madness dept

As discussed this morning, the House voted a few hours ago on a bill to reauthorize Section 702 of the FISA Amendments Act that did not reform the widely abused surveillance rules -- other than to codify some of the power allowing them to continue to abuse it for warrantless surveillance on Americans. There was a vote on an important Amendment from Reps. Justin Amash and Zoe Lofgren that would have allowed the reauthorization of the underlying program, but (importantly) required a warrant (as per the 4th Amendment) for spying on Americans. And, unfortunately, the amendment was voted down (183-233) and the awful reauthorization passed, 256 to 164.

The fight over this bill was... weird in so many ways. There was the expected bullshit: politicians outright lying to the public, arguing that the Amash/Lofgren amendment (which again, just said that the program had to be conducted in accordance with the 4th Amendment) would somehow stop the intelligence and law enforcement community from finding terrorists (it wouldn't). Again: everyone expected that. What was weird was (1) having some of Donald Trump's loudest detractors in Congress... then argue against the Amash amendment and in favor of giving the Trump administration more power to warrantlessly spy on Americans and share that data widely among law enforcement. And (2) having President Trump tweet a series of confused tweets this morning that demonstrated that he clearly didn't know what the debate is actually about... and suggesting he was against the reauthorization, despite the fact that the White House (his White House) had issued a statement strongly supporting the reauthorization.

So despite the White House (which, last I checked is supposed to represent the views of the President) tweeted in support of Section 702, here's what the President himself tweeted early this morning:

“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?

Not surprisingly, this came just minutes after Trump's besties at Fox & Friends had complained about Section 702, and even directly said "Mr. President, this is not the way to go."

During the segment, after claiming that Trump's "woes began" with "surveillance of him," Andrew Napolitano literally turns to the camera and says, "Mr. President, this is not the way to go." pic.twitter.com/W8NrtDDP3I

That resulted in Trump's tweet which freaked out supporters of the bill, and even had a few members of Congress suggesting delaying the vote. Of course, while Trump later when on to tweet about some other topic, hours later, he added another tweet to the original tweet above, suggesting that he was now in favor of the reauthorization:

With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!

You will be unsurprised, of course, to learn that in the hours between those tweets, Rep. Paul Ryan (who was soon to go on the floor and completely misrepresent the bill) had spoken to the President.

It's worth pointing out, of course, that both of Trump's tweets totally misrepresent the 702 program and the vote today. While there are many, many examples of abuse of Section 702 surveillance powers, there has yet to be any evidence that it was abused to do surveillance on the Trump campaign. But the second tweet is also wrong. The issue was not "foreign bad guys on foreign land" but the fact that the new bill authorizes surveillance of totally innocent people -- including American citizens at home in America -- without a warrant.

...the most powerful member of the Democratic Caucus, House Democratic Leader Nancy Pelosi, was notably silent on the bill. If Pelosi had whipped Democrats to vote against the bill and supported the USA RIGHTS Act instead, there’s a good chance that Trump and Ryan would have failed to get their full extension. Yet, just before the floor vote today she said she would not support the USA Rights Act and shamefully voted to hand Trump exactly what he wanted.

Almost worse than Pelosi's willingness to go along with the NSA was Rep. Adam Schiff's, D-Calif., who has seen his star rise over the last year being the Democrat’s go-to voice on the Russia investigation. On CNN with Jake Tapper this weekend, Schiff talked at length how he thought Trump was abusing his power and misusing the Justice Department to go after his political enemies.

Nonetheless, Schiff was a leading driver in the House to extend the NSA's surveillance powers, and has been undercutting the more robust reforms proposed by other Democrats, like longtime Senate Intelligence Committee member Sen. Ron Wyden, for months.

So, in summary: this bill that effectively expands the power of US intelligence and law enforcement communities to spy on Americans without warrants... was supported, then opposed, then supported again by the President while demonstrating he had no idea what was in the bill... then supported by Democrats who keep warning that the President will abuse the wider surveillance powers that they are voting to give him... and then the bill passed just as expected.

This is all kinds of fucked up.

Either way, this now moves on to the Senate. And while there are some Senators who are speaking out against the reautorhization -- mainly Senators Ron Wyden, Rand Paul and Mike Lee -- it's widely believed that there's not enough 4th Amendment supporters in the Senate to stop the bad bill from getting passed as well. And, at that point, it's quite likely that the President will sign the bill, despite his own tweet complaining about the program this morning.

from the tireless-in-their-unquestioning-defense-of-the-agencies-they-'oversee' dept

The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform.

Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years.

Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse.

Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight.

Proponents of the Intelligence Committee’s bill contend that it presents a compromise approach to addressing both of these privacy risks, and that recent modifications to the bill address the concerns of privacy advocates. In reality, the bill includes no meaningful reform on either issue – or any other real reforms to Section 702. Instead, the Intelligence Committee’s bill would codify these two practices and risk expanding the government’s surveillance authority.

Codification would include the NSA's abandoned "about" email collection. The NSA voluntarily ditched this program because it couldn't stop collecting US persons' communications with this untargeted collection. This bill would allow the NSA to turn the collection back on, provided no introduced legislation specifically demanding the permanent shutdown of this collection method within 30 days of the NSA's notice. Worse, it would possibly allow the NSA to expand the scope of an already vaguely-targeted collection.

First, it could be interpreted by the government to permit unintentional “about” collection, such as where the Intelligence Community knows a certain technique results in “about” collection, but since that technique is not specifically intended to collect “about” communications, it engages in that collection nonetheless. Second, because the bill defines an “abouts communication” as “a communication that contains a reference to, but is not to or from, a target,” there is a risk that the bill could be interpreted to allow the government to collect communications that merely reference a target, such as mentioning a target’s name. Currently, the government may only collect communications that include a target’s “selector,” such as a target’s email or phone number.

The bill would also leave the backdoor search loophole wide open. The FBI (and other agencies) query NSA collections for information not necessarily related to national security investigations through this backdoor search, allowing them to use ostensibly foreign-facing collections for domestic policework. The bill does add a warrant requirement for these sorts of non-national-security-related searches, but this would only apply to "predicated investigations." This would allow the FBI to make use of NSA databases in other forms of investigations, including preliminary investigations -- all of which are based on less probable cause than "predicated" investigations. In other words, the FBI would be required to get a warrant during the final stages of a criminal investigation but need nothing to engage in fishing expeditions using NSA collections.

The HPSCI is also on the attack, trying to prevent other reform legislation from gaining supporters. It has gone so far as to portray support for competing bills containing actual reforms as threats to national security. Ron Wyden's office has issued a debunking of the HPSCI's outlandish claims.

HPSCI Majority allegation: USA RIGHTS will recreate a pre-9/11 “wall” preventing the Intelligence Community and law enforcement from sharing terrorism information.

HPSCI Majority allegation: USA RIGHTS prevents the IC from “uncovering plots against the United States and saving potential hostages via limitations on the ability to conduct U.S. person queries…”

Fact: USA RIGHTS, which requires a warrant for U.S. person searches of 702 data, includes an exception to rescue hostages, as well as an emergency provision that allows the government to search first and seek a warrant later. In addition, the government has other FISA tools, such as Section 215, that would allow it to swiftly “connect the dots” between suspects and terrorists without a probable cause warrant.

HPSCI Majority allegation: USA RIGHTS limits the government’s ability to obtain terrorism information by “unnecessarily restricting when the Government may ask for technical assistance from electronic communication service providers.”

Fact: Recent statements from the government indicate that it interprets Section 702 to allow it to direct electronic communication service providers to alter encryption. Even supporters of government-mandated weakening of strong encryption have argued for court orders. USA RIGHTS merely requires that the FISA Court oversee any such directives and ensures that those directives are tailored to the surveillance at issue.

Fact: The “abouts” collection, which could include communications to and from innocent Americans on whom there is no suspicion, was suspended by the government due to significant compliance problems. If the government wishes to resume the “abouts” collection, it can always seek those authorities from Congress.

Fact: It is a basic tenet of the rule of law that surveillance authorities can be challenged in court. USA RIGHTS merely ensures that the government cannot abuse the secrecy of Section 702 to keep it from ever being challenged by anyone.

This is only a small part of the many claims the HPSCI has made in hopes of heading off any real challenge to its zero-reform Section 702 legislation. It's pretty sickening this is coming from legislators charged with subjecting surveillance efforts to intense scrutiny. The HPSCI has never held up any of the NSA's dubious claims as examples of untrustworthy behavior or as a threat to Americans' privacy. Instead, it focuses its attention on those who won't grant the NSA a pass it hasn't earned.

Either way, this issue is coming to a head today. House leadership tried to "appease" those who actually support the 4th Amendment by allowing just one amendment to be voted on -- good amendment by Reps. Justin Amash and Zoe Lofgren. House leadership apparently expects the amendment to fail, and then their awful bill to squeak across the finish line. In response, there's been a pretty frantic effort on both sides to garner support -- leading to the HSPCI's misleading attacks on the amendment.

If enough Reps in the House actually grasp what's at stake, and vote for the Amash/Lofgren amendment, it would be a pretty big game changer, and perhaps push the Senate away from its own bad proposals. If not, it will mean that a majority of our elected officials think that the 4th Amendment and the privacy of Americans is not particularly important. So right about now might be a good time to contact your representative to see where they stand on this.

As part of a continuing resolution to keep the federal government running for a few more weeks, Congress extended the deadline to decide what to do about Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments.

This is probably the best solution for now. While there have been some serious efforts made to reform Section 702, none of those efforts have been allowed to reach the floor for a vote. Instead, both the House and Senate Oversight Committees have offered up horrible zero-reform bills as "official" 702 remixes -- both of which expand government agency access to NSA data stores and push the next sunset as far away as 2025.

Going into the final days of the year with no reform package, the suspicion was legislators would append one of the two terrible bills as a rider to the annual must-pass budget bill, thus circumventing any real debate about the NSA's controversial collections.

With the pressure off (temporarily) -- thanks to the passed resolution -- there may be a chance for actual legislative discussion about the oft-abused programs. If talks are productive enough, we may see these powers pruned a bit before being reauthorized. (There is zero chance of a total sunset, even though sunset provisions are put in place to provide for eventual retirement of collection authorities.) Given the new administration's obvious approval of anything remotely connected to the War on Terror, it's going to be difficult to enact significant reforms, no matter when they're finally discussed. No matter what happens in 2018, we can at least be grateful Congress didn't auction off the general public's interests in favor of ensuring government agencies continue to get paid.

It's important to remember none of this would be happening without Edward Snowden. The documents he leaked pushed the Intelligence Community towards more transparency, resulting in the release of FISA court opinions and Inspector General's reports showing widespread abuse/misuse of Section 702 collections by the NSA. Without the leaks, it's unlikely the NSA would be any more transparent than it was back when it was referred to as No Such Agency. Our government's dragnet surveillance operations would still be cloaked in impenetrable darkness and its abuses of power its own dirty little secret.

from the tick-tick-tick dept

Just this morning we wrote about a last minute plan by surveillance hawks in Congress to rush through a really bad bill to extend Section 702, which enables widespread domestic surveillance by the NSA. We recommended letting your elected officials know what a bad bill it was (leading at least one of our commenters to mock us, saying contacting your elected officials is useless). Turns out: it worked (for now). The bill has been taken off the table and won't be voted on today. Senators Rand Paul and Ron Wyden had promised to filibuster such a bill on the Senate side to stop it, and it appears that widespread criticism caused the House to kill the bill for now.

Of course, Congress is now running out of time if it wants to extend the program. It technically expires at the end of the year (though large parts of the program can continue beyond that for at least some period of time). Devin Nunes, who was the main sponsor of the bill, appears frustrated, as he should for pushing so hard on such a bad bill:

But by midafternoon Wednesday, Nunes told reporters that the reauthorization effort was dead “for now” and that decisions about how to proceed were being made “above my pay grade.” The House Rules Committee also canceled plans to review the proposed legislation Wednesday afternoon.

It's still possible that Congress may try to shove a 702 extension into the "must-pass" spending bill next week -- though a whole bunch of folks in Congress have warned leadership that they will not accept this. Of course, we've gone through things kind of like this before. If you don't recall, the other controversial program, Section 215, expired before Congress was able to agree on a reform package, and that helped get Congress to finally agree to significant reform to the program after a few weeks of it technically no longer existing. A more likely solution would be a short term (30 or 60 day?) renewal, forcing the debate into January.

from the because-of-course dept

This is, unfortunately, no surprise at all. It happens every time that a key surveillance provision is set to sunset. Rather than have any real public debate about it, the "surveillance hawks" in Congress refuse to do anything until there are just weeks left until the provision would expire... and then try to ram through a renewal. And, indeed, that's exactly what's happening. While people who are concerned about these surveillance powers have been urging debate on possible reform for basically two years, Congress has mostly ignored all such requests. Instead, they pushed for a very weak "reform" bill... and then did nothing about it for months. And now, they apparently announced just last week a plan to vote on a toothless bill today. No debate, no notice, no discussion. As EFF notes, this bill is bad:

As we wrote, the bill, originally introduced by Chairman Devin Nunes before the House Permanent Select Committee on Intelligence, “allows warrantless search of American communications, expands how collected data can be used, and treats constitutional protections as voluntary.”

The bill would create an easy path for the NSA to restart an invasive type of surveillance (called "about" searches) that the agency voluntarily ended earlier this year because of criticisms from the FISA court. It would also give FBI agents the power to decide whether or not to seek a warrant to read American communications collected under Section 702.

Of course, it's particularly ridiculous that it's Nunes pushing for this broad renewal of Section 702. While he has a very long history of actively misleading the public about what the NSA can actually do, he was also the one who flipped out when he found out that Section 702 was used (legally under the law) to conduct surveillance that swept in the communications of General Mike Flynn's calls with Russians. And yet, here he is, making sure that that power continues, without restrictions, suggesting that maybe (just maybe) his public wailing about the surveillance on Flynn was political theater, rather than legitimate concern.

EFF has set up a page to let you contact your Representative to let them know to vote against the bill. Unfortunately, when surveillance hawks started screaming in Congress about how failing to pass this bill will "harm national security" and "put us at risk of terrorist attacks" or "take away a key NSA tool" many Congress members who aren't knowledgeable about the details will reflexively vote for the bill. Check out the EFF's page and make sure that your elected representative knows that this is a bad bill that wrecks the 4th Amendment rights of Americans and allows for massive domestic surveillance.

In case you want a refresher, a few months back we wrote about an an important report by Marcy Wheeler detailing twelve years of NSA surveillance abuse, much of it done under this 702 program that is set to expire at the end of the year, and which this new bill seeks to renew without any real change. Please read up and let your elected representatives know not to support this bill.

from the please-don't-make-us-do-this dept

The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains:

Based on the concerns elaborated in its previous opinions ... the WP29 focused on the assessment of both the commercial aspects of the Privacy Shield and on the government access to personal data transferred from the EU for the purposes of Law Enforcement and National Security, including the legal remedies available to EU citizens. The WP29, assessed whether these concerns have been solved and also whether the safeguards provided under the EU-U.S. Privacy Shield are workable and effective.

As far as the commercial aspects of Privacy Shield are concerned, the WP29 is unhappy about a number of important "unresolved" issues such as "the lack of guidance and clear information on, for example, the principles of the Privacy Shield, on onward transfers [of personal data] and on the rights and available recourse and remedies for data subjects."
The issue of US government access to the personal data of EU citizens is even thornier. Although the WP29 welcomed efforts by the US government to become more "transparent on their use of their surveillance powers", the collection of and access to personal data for national security purposes under both section 702 of FISA and Executive Order 12333 were still a problem. On the former, WP29 suggests:

Instead of authorizing surveillance programs, section 702 should provide for precise targeting, along with the use of the criteria such as that of "reasonable suspicion", to determine whether an individual or a group should be a target of surveillance, subject to stricter
scrutiny of individual targets by an independent authority ex-ante.

As regards the Executive Order 12333, WP29 wants the Privacy and Civil Liberties Oversight Board (PCLOB) "to finish and issue its awaited report on EO 12333 to provide information on the concrete operation of this Executive Order and on its necessity and proportionality with regard to interferences brought to data protection in this context." That's likely to be a bit tricky, because the PCLOB is understaffed due to unfilled vacancies, and possibly moribund. In conclusion, the WP29 "acknowledges the progress of the Privacy Shield in comparison with the invalidated Safe Harbor Decision", but underlines that the EU group has "identified a number of significant concerns that need to be addressed by both the [European] Commission and the U.S. authorities." It spells out what will happen if they aren't sorted out:

In case no remedy is brought to the concerns of the WP29 in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the CJEU for a preliminary ruling.

That is, it will ask the EU's highest court to rule on the so-called "adequacy decision" of the European Commission, where it decided that Privacy Shield offered enough protection for EU personal data moving to the US. There's a clear implication that WP29 doubts the CJEU's ruling will be favorable unless all the changes it has requested are made soon. And without the Privacy Shield framework, it will be much harder to transfer personal data legally across the Atlantic. Moreover, the EU's data protection laws are about to become even more stringent next year, when the new General Data Protection Regulation (GDPR) is enforced. Organizations in breach of the GDPR can be fined up to 4% of annual global turnover, which means even the biggest Internet companies will have a strong incentive to comply.

from the only-losers-follow-laws dept

The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. (And it's actually supposed to hand over the evidence as well.)

This just doesn't happen. The NSA encourages parallel construction to obscure the true source of evidence used in court cases. The FBI's access to Section 702 collections makes this much easier. It allows the FBI to present NSA evidence as its own, heading off any scrutiny of the NSA's programs and collection methods.

The NSA was always supposed to hand over this information. It's been mandatory for years. But it doesn't. After it was reported the NSA has misled none other than the Supreme Court of the United States about its fulfillment of evidentiary obligations, the agency briefly began complying with the law. It issued five notices in the span of a year (2013-2014) before going dark again.

It appears the NSA's brief flirtation with statutory compliance was just that: brief, cheap, and completely hollow. A show of compliance was made but the NSA had no intention of acting in good faith going forward. The Intercept is publishing more Snowden docs, these ones confirming the NSA's continued obligation-shirking.

A Uzbekistani man living in the US has just been convicted of terrorism charges -- something that followed several months of interaction with two FBI informants, including one who actually lived with him during the course of the investigation. The DOJ got its conviction, but it did it without fulfilling its statutory obligations.

[J]ustice Department lawyers gained their conviction against Kurbanov after failing to disclose a legally significant fact: Kurbanov’s conversations with his alleged terrorist associate had been captured through PRISM, a National Security Agency mass surveillance program whose existence was revealed in documents provided by whistleblower Edward Snowden. Under PRISM, the government obtains communications directly from at least eight large technology companies without the need for warrants, a type of practice authorized in 2008, when Congress provided new surveillance powers under FISA.

Using this collection program, along with the NSA's interpretation of its statutory obligations, no court anywhere is being informed about the collection itself or its use against defendants. When pressed for answers, the DOJ tends to respond with a hoisting of its national security talisman, which usually wards off additional judicial scrutiny.

The DOJ's oversight -- and the NSA's -- should know something's wrong. It's not as though all of this information can only be gleaned from leaked classified documents.

A nationwide review of federal court records by The Intercept found that of 75 terrorism defendants notified of some type of FISA spying since Section 702 became law, just 10 received notice of Section 702 surveillance. And yet Section 702 was credited with “well over 100 arrests on terrorism-related offenses” in a July 2014 report from the Privacy and Civil Liberties Oversight Board…

Those hyping a clean reauth of Section 702 are prone to pointing at gaudy numbers like that one. But they're also willing to overlook the much smaller numbers showing the NSA isn't playing by the rules. I guess we're just supposed to accept the fact that terrorist prosecutions will never be according to Hoyle. That's the price we pay for security, apparently: a mockery of due process and checks and balances in service of the greater good.